Ms Angela White v St Laurence Community Services Incorporated

[2017] FWC 6694

[2017] FWC 6694

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Angela White
v
St Laurence Community Services Incorporated
(U2017/8303)

DEPUTY PRESIDENT COLMAN MELBOURNE, 15 DECEMBER 2017

Application for an unfair dismissal remedy – valid reason – serious misconduct – application dismissed.

[1] This decision concerns an application made by Ms Angela White under s.394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.

[2] From December 2007 until her dismissal, Ms White was employed as a personal care assistant by St Laurence Community Services Incorporated (St Laurence) at its aged care facility in Lara, Victoria.

[3] On 28 April 2017, Ms White was stood down, following a complaint from a co-worker that she had mistreated a 93 year old resident by inflicting pain and distress on him in attempting to prise open and dry his constricted hand. An investigation was conducted and additional allegations were raised, including that Ms White had failed to follow resident care plans. The investigation found the allegations to be substantiated. On 24 July 2017, St Laurence summarily terminated Ms White’s employment.

[4] Ms White contends that her dismissal was unfair. She seeks compensation, rather than reinstatement.

[5] The matter was heard before me on 9 November 2017. Ms White gave evidence on her own behalf. The company led evidence from Ms Anne Demetriou, Ms Lily Stefanovic, and Ms Folasade (Sade) Obagbemi.

Initial matters to be considered

[6] Section 396 of the Act requires that I decide four matters before considering the merits of Ms White’s application. There is no dispute between the parties, and I am satisfied, of the following matters.

[7] First, Ms White’s application was made within the 21 day period required by s.394(2) of the Act.

[8] Secondly, Ms White was a person protected from unfair dismissal, as she earned less than the high income threshold (s.382).

[9] Thirdly, Ms White’s dismissal was not a case of genuine redundancy.

[10] Fourthly, St Laurence is not a small business for the purposes of the Act, and Ms White’s dismissal was therefore not one that could be consistent with the Small Business Fair Dismissal Code.

Factual background

[11] The St Laurence aged care facility at Lara has high care, dementia and low care units. Ms White worked across all three units, mostly in high care. She worked night shifts commencing at 10.00pm and finishing at 7.15am or 7.30am.

[12] On the night of 27-28 April 2017, Ms White was working in the dementia unit. Another personal care worker, Ms Obagbemi, was rostered on that shift.

[13] At 7.35am on 28 April 2017 Ms Obagbemi went to see Ms Demetriou, Director of Nursing at Lara, and told her that an incident had occurred on her shift which she needed to report, in accordance with the company’s mandatory reporting procedures concerning elder abuse. 1

[14] Ms Obagbemi told Ms Demetriou that at around 6.00am, she and Ms White had assisted a resident in the dementia unit, Mr H, to shower and change. Ms Obagbemi told Ms Demetriou that she had seen Ms White pulling Mr H’s left hand to open it, and that Mr H had said that it hurt and was crying. Ms Obagbemi said that she had told Ms White loudly to stop and she did so. 2

[15] Ms Obagbemi also told Ms Demetriou about several other concerns relating to Ms White’s work, including that Ms White had left the wing for an extended period during the night.

[16] Later on 28 April 2017, Ms White was stood down on full pay. The alleged incident involving Ms White’s treatment of Mr H was reported to the police and the Department of Health, as required by the company’s policies. Mr H’s son was also notified. No police charges were ultimately laid in connection with the incident.

[17] On 1 May 2017, Ms Ann Butcher, General Manager Aged and Community Care, wrote to Ms White, confirming that she would remain on paid leave pending an investigation of the incident involving Mr H. The letter stated that the allegation was serious and could result in disciplinary action, including summary termination of employment. 3

[18] Ms Demetriou and Ms Stefanovic viewed the CCTV footage from the cameras installed in the common areas in the dementia unit from the night of 27-28 April 2017. This showed that Ms White left the unit at 1.02am and returned at 1.30am. 4 They also viewed footage from other nights. Ms Demetriou believed that the footage showed employees sleeping or watching television and not attending to residents and performing duties as required. This included Ms White, in respect of the nights of 20-21 April and 23-24 April 2017.5

[19] On 25 May 2017, Ms Stefanovic wrote to Ms White, advising her that an external investigation was taking place in relation to Ms White’s treatment of Mr H, and that the investigation would also consider allegations against other employees. It stated that if the investigation raised further allegations against Ms White, she would be provided with details before being asked to respond to them. 6

[20] The investigation led to disciplinary action against other employees, including in some instances dismissal. 7 The fate of these employees and their conduct and performance was not the subject of any significant argument by the parties.

[21] On 16 June 2017, Ms Demetriou wrote to Ms White, stating that additional allegations against her had arisen from the investigation. It directed Ms White to attend an interview with the investigator on 22 June 2017. The allegations referred to in the letter of 16 June 2017 were as follows:

1. Being unaccounted for between approximately 1am and 1:30am on 28 April 2016 at the time a colleague required your assistance with a resident in room 5 (T).

2. Making a claim to a colleague that at approximately 4am on 28 April 2017 you helped a resident in room 5 (T) who you claim had fallen out of bed. If this is the case: you did a single lift; you did not report this in the notes; or make any incident report.

3. Physical abuse against a resident (AH) at approximately 6am on 28 April 2017 (Allegations as per 25 May 2017 letter – drying hands with force).

4. Failing to following residents' care plans that entail any visiting to rooms, turning of residents or checking on residents.

5. Failing to complete the night duty shift list.

6. Delay in writing your progress notes on shifts.

7. Providing information in your progress notes that is incorrect or pertains to actions you have not performed.

8. Watching television and/or other devices on shift for extended periods of time. 8

[22] On 22 June 2017, Ms White attended an interview with the external investigator. Ms White’s solicitor was also present, as was Ms Stefanovic. The investigator asked Ms White questions about the night of 27-28 April 2017 and the allegations referred to above. Ms White provided responses. Ms Stefanovic took notes. 9

[23] On 4 July 2017, Ms Demetriou sent a letter to Ms White, setting out nine findings that had been made against her and directing her to attend a meeting to discuss her response to the findings. The findings were in terms similar to the allegations referred to in the letter of 16 June 2017, save for allegation 7, which was not reflected in the findings. 10 Two new findings were made, namely that Ms White failed to change Mr H (the same Mr H previously mentioned) twice on 28 April 2017, and subsequently lied by stating that she had changed him; and that Ms White lied during the investigation by stating that she was unaccounted for on the night of 27-28 April 2017 because she had gone to obtain pads and other supplies. The finding in relation to allegations 3 and 4 were in slightly different terms, namely:

● You used physical force towards a resident (H) at approximately 6am on 28 April 2017 when attempting to dry his hands and caused him to become distressed and cry.

● You have failed to follow residents' care plans that entail any visiting to rooms, turning of residents or checking on residents, including on 20/21 and 23/24 April 2017.

[24] Ms White’s advisors, Just Relations, prepared a written response to these findings. This response was sent to Ms Demetriou on 21 July 2017. In relation to the finding concerning the incident with Mr H, the response stated that Ms White did not use physical force towards Mr H, that she was attempting to dry his hands and that Ms White ‘was aware that that hurts him’. It stated that Mr H ‘did not become distressed or cry to [Ms White’s] direct knowledge’. 11 In relation to the finding concerning not following care plans, the response stated: ‘It is not clear what the meaning of this supposed finding is. Angela did visit rooms, turn residents and checked on residents on every night she worked.’12

[25] On 24 July 2017, a meeting occurred between Ms Demetriou, Ms Stefanovic and Ms White. Ms White was asked if she wanted to provide any further responses to the allegations. She said that she would rely on her written response. 13

[26] Ms Demetriou considered that the allegations against Ms White had been substantiated, and that her conduct involved serious misconduct. She discussed the findings of the investigation with Ms Butcher. They agreed that they no longer had trust and confidence in Ms White to adequately care for residents. They decided to terminate her employment. 14

[27] Later on 24 July 2017, Ms Demetriou sent Ms White a notice of termination of employment. It set out the conduct that Ms White had engaged in, and stated that the company was satisfied that the allegations made against her had been substantiated. 15 It stated that Ms White’s conduct constituted serious misconduct resulting in the neglect of residents that was inappropriate and unacceptable, and that her employment with the company was terminated immediately.16

Was Ms White’s dismissal unfair?

[28] For a dismissal to be unfair, the Commission must be satisfied that the dismissal was harsh, unjust or unreasonable (s.385(b)). 17 In considering whether it is so satisfied, the Commission must take into account the matters specified in s.387. I will address each of these matters in turn below.

Was there a valid reason for dismissal (s.387(a))?

[29] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is ‘sound, defensible and well-founded.’ 18

[30] The Commission does not stand in the shoes of the employer and determine what the Commission would do if it had been in its position. 19 The question the Commission must address is whether there was a valid reason, in the sense both that it was a good or sufficient reason, and a substantiated reason.

[31] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. 20 It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason.21

[32] Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities. However, as the High Court noted in Briginshaw, the nature of the relevant issue necessarily affects the ‘process by which reasonable satisfaction is attained’ 22 and such satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’23 or ‘circumstances pointing with a wavering finger to an affirmative conclusion’.24 In other words, the application of the Briginshaw standard means that the Commission should not lightly make a finding that an employee engaged in the misconduct alleged against her.25

[33] In its written submissions, the company submitted that in relation to valid reason it relies upon the individual actions of Ms White identified in the findings, as well as the aggregate of her conduct.

Ms White’s treatment of Mr H

[34] The company contends that Ms White was witnessed by Ms Obagbemi physically mistreating Mr H. Ms White denies this and maintains that she was attempting to dry his hand, appropriately.

[35] The evidence of Ms White and Ms Obagbemi conflicts in relation to what occurred around 6.00am on the morning of 28 April 2017 in Mr H’s room. Mr H suffers from dementia, and as a result of a stroke has a constricted hand that is tightly closed.

[36] Ms White gave evidence as follows:

● She and Ms Obagbemi got Mr H out of bed. Ms White showered Mr H and Ms Obagbemi got his clothes ready.

● She proceeded to dry Mr H. Mr H clenched his hands, as he always did. He did not call out or indicate that he was in any pain. 26

● She tried to dry between Mr H’s fingers with a towel, as she had done many times before. This was for the proper care of his skin, which could ulcerate if not dried.

● Ms Obagbemi walked into the bathroom and said ‘stop’.

● Mr H was probably grimacing at this time and had his hand clenched. 27

● She stopped drying Mr H’s hand and went to see the duty nurse, Ms Brislane.

● She told Ms Brislane that Ms Obagbemi had told her to leave Mr H’s hand wet and to stop drying it, to which Ms Brislane said ‘Just leave it’.

● Ms White went back to Mr H’s room and finished drying him. He was not upset.

[37] Ms Obagbemi gave evidence as follows:

● She was attending to Mr H’s sheets while Ms White showered Mr H.

● She heard a scream from the bathroom. She walked into the bathroom and saw Ms White pulling Mr H’s fingers, trying to open his hand. He was crying and clearly in pain. 28

● Ms White told her that she wanted to clean or dry his hand.

● Ms White pulled Mr H’s hand and opened it.

● Mr H was crying and distressed. 29

● Ms Obagbemi believed Ms White’s conduct was inappropriate and had to be reported. 30

● She went to see Ms Demetriou, the director of nursing, and reported the incident.

● She told Ms Demetriou that she did not want to work with Ms White because she did not like the way she treated the residents. 31

[38] In relation to the questions of whether Mr H screamed, was crying, distressed and clearly in pain, and whether Ms White pulled and opened Mr H’s hand, I prefer Ms Obagbemi’s evidence to that of Ms White for the following reasons.

[39] First, I found Ms Obagbemi’s evidence to be direct, candid and credible. She said that she was distressed about the incident and that it was ‘terrible to see’. 32 In my judgment, Ms Obagbemi was genuinely upset recalling the events of that morning, and her evidence and demeanour in the witness box in this regard were not feigned.

[40] Secondly, it is significant that, on Ms White’s own evidence, when Ms Obagbemi told her to stop what she was doing, she did so. Ms Obagbemi was not Ms White’s superior. She was not a registered nurse. She was a personal care worker, like Ms White. In my view, the fact that Ms White stopped handling Mr H’s hand when told to do so indicates that Ms White had doubt about the appropriateness of her treatment of Mr H. This is compatible with Ms Obagbemi’s account of what occurred.

[41] Thirdly, I did not find convincing Ms White’s evidence as to precisely how she handled Mr H’s hand. She gave evidence to the Commission that she was ‘drying between the fingers’; however she told Ms Brislane that ‘she needed to open it’. 33 Before the Commission, Ms White said that she did not recall saying to Mr H ‘I need to dry your hand, I need to open it.’34 Ms White did not concede that she may have sought to open Mr H’s hand,35 although she said that the hand needed to be dried, otherwise it would ulcerate.36 By contrast, Ms Obagbemi’s evidence was that Ms White did open Mr H’s hand, and that in four years working at Lara she had never seen anyone open it.37 In my view, Ms White’s belief that the hand needed to be dry provides an explanation for why she would seek to open it, which, on Ms Obagbemi’s evidence, is what did occur and caused Mr H pain and distress.

[42] Fourthly, Ms Obagbemi was consistent and convincing in her account that Mr H was crying and clearly in pain. 38 Under cross-examination, she stated that Mr H had himself said that it was hurting. This detail was not provided in her witness statement (and Ms White denied that he said that). However it is compatible with Ms Obagbemi’s consistent evidence that Mr H was in pain. By contrast, Ms White’s evidence about whether her conduct caused Mr H pain was not convincing. In her statement and before the Commission, she said that Mr H did not indicate that he was in any pain and that she did not believe she had hurt Mr H.39 However, in her written response to the findings against her, Ms White’s representative wrote that Ms White attempted to dry Mr H’s hand and ‘was aware that that hurts him’.40 A submission was made at the end of Ms White’s written response that the company’s allegation should more properly be that ‘the resident suffered pain while Angela was attempting to dry his hands. That sort of action, in caring for the resident, cannot equate to assault.’41 Further, in the record of interview of 22 June 2017, which is attached to Ms White’s witness statement, Ms White is recorded as saying: ‘I did not finish drying him. If I was hurting him I thought it best I leave the room and let Sade finish.’ These statements, and her response to the company’s factual findings, are not consistent with her position before the Commission that she did not cause Mr H pain.

[43] Fifthly, Ms Obagbemi was clear in her recollection and account that Mr H screamed. She mimicked in the witness box the sound she heard Mr H make. Ms White said that he did not scream, 42 but could not recall if he made any sound, although she said he might have said ‘oo’.43 I find it improbable that Ms White would not remember whether Mr H made any sound while she was dealing with his hand, given that her treatment of Mr H was immediately put in issue by Ms Obagbemi. In any event, on the clear evidentiary contest as to whether Mr H screamed, I found Ms Obagbemi’s testimony convincing.

[44] There is no apparent reason why Ms Obagbemi would confect or embellish her account of what occurred. She and Ms White had not worked together very often. 44 There was a reference in Ms White’s witness statement to an earlier ‘run in’ between her and Ms Obagbemi about changing pads. Ms White contended in her statement that Ms Obagbemi was asleep during part of the night, which Ms Obagbemi denies. However, this is a frail basis on which to draw an inference of personal animus that might explain why Ms Obagbemi would invent a story about Ms White.

[45] Further, I do not consider that Ms Obagbemi was mistaken in her perception of Ms White’s conduct. Indeed Ms White did not at any stage contend that Ms Obagbemi had misunderstood the situation. She simply has a different version of events.

[46] Ms White’s representative submitted that Ms Obagbemi did not make a written record of the incident in her progress notes, and that the events of that morning cannot for that reason have been the ‘horrible ordeal she complained of’. However, Ms Obagbemi took a far more direct and serious step: she went to the Director of Nursing and personally reported the incident. She treated the matter with the utmost seriousness.

[47] Ms White’s representative contended that there were inconsistencies in Ms Obagbemi’s evidence. It was submitted that in her witness statement, Ms Obagbemi had claimed that Ms White said to Mr H ‘Do you need to wet your bed again’, but that no mention of this was made in her statement to Ms Demetriou, or in her comments to investigators. However, in my view this is not an inconsistency; it is a detail that she did not mention elsewhere. In any event, I make no finding that Ms White did make this statement (Ms White denies it). A statement, unlike a scream, can be misheard. I also note that Ms Obagbemi referred in her statement to Ms White wanting to clean Mr H’s hand, and elsewhere to her wanting to dry his hand. However, from the vantage point of a witness observing a person holding a resident’s hand, it may not be obvious whether it is cleaning or drying that is in progress. Ms Obagbemi also first said that she had shaved Mr H, but then acknowledged that she couldn’t remember if it had been she or Ms White who did this. However, in my view such inconsistencies are compatible with a witness giving a candid, unrehearsed account of what she has seen and heard, and making appropriate concessions. In relation to critical points, Ms Obagbemi’s evidence was in my assessment clear and consistent, including that Mr H screamed and was clearly in pain.

[48] I have considered the information given by Ms Brislane to the investigator, as reflected in the investigation report which was tendered into evidence by agreement of the parties. 45 Ms Brislane stated that when she went to see Mr H soon after the incident, he did not appear to be distressed, but that Ms Obagbemi was visibly upset.46 By contrast, Ms Obagbemi said in cross-examination that Mr H was still distressed when Ms Brislane came into the room.47 This difference of perspective may be accounted for by Ms Obagbemi having seen the earlier event and believing that Mr H was still distressed, even though to Ms Brislane this was not apparent. In any event, Ms Brislane’s account is consistent with Ms Obagbemi having been troubled by what she saw. Further, the fact that Mr H did not appear to Ms Brislane to be distressed does not mean that he was not distressed earlier, during the incident.

[49] Finally, I note that Ms Demetriou spoke with Mr H at about 6.50am concerning what had occurred earlier in the morning. She asked him if he had any pain in his hand and he said ‘no but it hurts when someone tries to open it.’ 48 Mr H suffers from dementia, and his recollection of and perspective on events even in the recent past should be approached with some forensic caution; however the opinion of Ms Demetriou was that what had occurred was ‘still on his mind and that he was aware that if someone tries to open his hand it hurt’.49 This opinion is also compatible with Ms Obagbemi’s version of events.

[50] For the above reasons, I accept the evidence of Ms Obagbemi in relation to the incident involving Ms White’s treatment of Mr H on the morning of 28 April 2017. I find that Ms White opened Mr H’s hand, and that Mr H screamed, was crying, distressed and clearly in pain. I conclude on the basis of these findings that Ms White’s treatment of Mr H caused him pain and distress.

[51] The question then arises as to whether Ms White causing Mr H pain and distress was in some way justified.

[52] Ms White’s representative contended that it is ‘intuitive that any health care professional may inflict some discomfort or pain on a person in their care in the course of proper treatment’. 50 I do not agree with such a general statement. In particular, vulnerable people such as Mr H are in a position of dependence on their carers. They may have limited capacity to express themselves or simply to pull away and resist an intervention when it causes them pain. Their treatment and handling should not be informed by a ready acceptance that good care may involve pain; it should be approached with sensitivity.

[53] Ms White further contends that she was actuated by concern to ensure that Mr H’s hand was properly dried, and points to the comments of Ms Brislane that Ms White ‘was right that we need to look at the hand and get in there. Her intention was right but her action does not sound correct.’ 51The applicant submits that Ms Brislane’s recorded comments are the best professional assessment of Ms White’s approach.52 However in my view it is not a professional assessment of what occurred; it is an impression or view, based on a brief discussion with Ms White. Further, it seems highly unlikely that Ms White conveyed to Ms Brislane that Mr H had screamed, and was crying and visibly distressed, as she denied all of these things were true.

[54] It was further contended for Ms White that there was no contrary evidence that the method she used to dry Mr H’s hand had ‘stood the test of time’; according to Ms White, she had adopted the same approach many times before, including in front of registered nurses. 53 Whatever Ms White did previously, I do not understand her submission to be that it involved causing Mr H to scream and cry. It was not Ms White’s position that she did the same thing as previously, but that for the first time, on 28 April 2017, Mr H screamed and cried. She denied that he reacted in this way. Any previous drying of the hand that might have been witnessed by a registered nurse was in my view likely to have occurred in circumstances different from what occurred on 28 April 2017, at least in terms of the impact it had on Mr H.

[55] For the above reasons, I consider that Ms White’s treatment of Mr H was not justified in the circumstances. In my view, it constituted a valid reason for dismissal.

[56] The company tendered its Elder Abuse Policy, 54which defines elder abuse as ‘any conduct occurring within a relationship where there is an implication of trust, which results in harm to an older person’. It notes that older people in residential care may be especially vulnerable because of cognitive defects such as dementia and because of physical frailty. Among the forms of abuse it describes is ‘rough handling.’ The company invited me to make a finding that Ms White’s conduct fell within the definition of elder abuse in the company’s policy. However, in my opinion it is not necessary for me to make a finding in relation to the application of the policy, or to characterise Ms White’s conduct by reference to it.

Failure to follow residents’ care plans

[57] Section 387(a) directs the Commission to consider whether there was a valid reason for the dismissal related to capacity or conduct. A factual finding, such as I have made, of the existence of a valid reason is sufficient to conclude the consideration of s.387(a). One valid reason is enough. However, I will address one of the other reasons that was relied on by the company as a valid reason for the dismissal of Ms White. 

[58] The company contended that Ms White had failed to follow residents' care plans. In this regard, St Laurence submitted that care plans serve a critical function in the provision of care to residents. 55 Ms Demetriou’s evidence was that Ms White was a personal care worker with 10 years’ experience, and that she knew, or ought to have known, that she needs to be familiar with care plans for residents in her care, and follow instructions in handover notes. According to Ms Demetriou, the Director of Nursing, the failure of a personal care worker to follow residents’ care plans is a very serious issue, and can result in a breach of the duty of care towards them.56 Ms White understood the importance of care plans and accepted that following them was a fundamental element of her role.57 She admitted during the investigation that she was not following care plans, and confirmed this under cross-examination before the Commission.58 She also acknowledged that a care plan 'tells you how to treat a person basically, what they require for care'.59

[59] The company's counsel invited the Commission to find that Ms White was responsible for not observing the care plan for a particular resident, JH, who required 2-hourly pressure care repositioning. However, as Ms White’s representative pointed out, it is not clear that Ms White bore any more responsibility for not carrying out that particular care plan than any other worker. In any event, the finding put to Ms White and relied on by the company as one of the reasons for dismissal was that Ms White ‘did not follow care plans, including on 20/21 and 23/24 April 2017’. In the latter regard, surveillance footage had shown Ms White sitting on the couch for extended periods of time and not attending to JH, and failing to do general rounds including on the nights identified. According to the investigation report, Ms White could not provide an explanation for her conduct. Perhaps others on duty on those nights shared responsibility for not attending to JH. But that does not excuse Ms White’s conduct. Furthermore, the findings related not just to those two nights, but to a general practice of not following care plans.

[60] Ms White accepts that she was not following care plans. She also says that others were not following the plans. 60 But she conceded that it was part of her duties, and that she was not doing this properly.61 She agreed that the allegation against her in relation to not following care plans was substantiated.62 In my view, in the setting of a workplace devoted to the care of vulnerable people, this constituted a further valid reason for dismissal. 

Conclusion on valid reason

[61] On the basis of the factual findings I have made above, I am satisfied on the evidence before me that Ms White engaged in misconduct in her treatment of Mr H on the morning of 28 April 2017. This gave St Laurence a sound, defensible, well-founded and valid reason to dismiss Ms White.

[62] In addition, Ms White’s acknowledged failure to comply with resident care plans provided a separate and additional valid reason for dismissal.

[63] It is not necessary for me to consider the other reasons for which the company dismissed Ms White.

[64] I would note that, for the purposes of establishing a valid reason in the context of s.387(a), it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal. 63 The seriousness of the conduct, and the proportionality of the decision to dismiss Mr White and to do so summarily, are matters I shall consider further below in the context of s.387(h).

Was Ms White notified of the reasons for her dismissal and given an opportunity to respond (s.387(b) and (c))?

[65] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reasons for dismissal and whether the person was afforded an opportunity to respond to any reason related to their conduct or performance. I note that these and the other matters in s.387 are considerations, not ‘criteria’, as is sometimes mistakenly believed.

[66] In order to tell against a finding that the dismissal was unfair, notification of the reason for dismissal should occur before the decision to dismiss is made. 64Further, the notification of the reason should be made in explicit, plain and clear terms.65 The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a common sense way; the focus of the consideration is whether the employee is treated fairly, rather than on any formality.66

[67] In her written submissions, Ms White contends that she was not notified of the ‘explicit detail’ of the matters for which the company dismissed her. 67 However, I am satisfied that Ms White was notified of the two valid reasons for dismissal I identified above. Both of these matters were identified in the company’s letter to Ms White dated 16 June 2017 setting out the allegations against her; the consequent findings were put to her, and Ms White, through her representatives, provided a written response to them. The reasons were also referred to in the termination letter of 24 July 2017. In my view, the notification of the two relevant reasons was explicit, plain and on clear terms.

[68] The evidence referred to above also establishes that St Laurence afforded Ms White an opportunity to respond to reasons for dismissal related to her conduct. In relation to her treatment of Mr H, she received a letter confirming that she was stood down on full pay while the matter was being investigated. She was told that she would be advised of any other allegations concerning her conduct. Further allegations, including her failure to follow resident care plans, were subsequently put to her in the letter dated 16 June 2017. Ms White’s solicitor attended the interview between Ms White and the investigator; her representative prepared a written response to the findings against her.

[69] In relation to the allegation concerning failure to follow resident care plans, the minutes of the meeting of 22 June 2017 record Ms White stating that she wanted to respond in writing. In her reply submissions in the Commission, Ms White submitted that she was not given any details of these allegations and was not afforded the opportunity to respond in writing. However, the allegation that was put to her was precise; and Ms White was represented at the time. If she wanted further information about this allegation and finding, she could have asked for it. She was not prevented from responding to the allegation in writing.

[70] The findings of the investigation were sent to Ms White on 4 July 2017, including those concerning the treatment of Mr H and the failure to comply with care plans; and she attended a meeting on 24 July 2017 to discuss her response. Ms White said at that time she would rely on her written responses. She made no reference to her earlier foreshadowed wish to respond further in writing in relation to the allegations concerning failure to comply with care plans.

[71] Ms White contends that she was not provided with an opportunity to respond to all of the details of the allegations against her because the investigator’s interview with Ms Obagbemi occurred after the investigator’s interview with her, and she could therefore not respond to the detail of what Ms Obagbemi said. Ms Stefanovic gave evidence that the entire investigation report was sent to Ms White’s previous lawyer, although she was unsure when this occurred; Ms White submitted at hearing that she did not receive it. 68 In any event, in my view the allegations and the findings were clearly put to Ms White. In relation to the reason for dismissal concerning the treatment of Mr H, it is clear from the notes of the meeting with the investigator that Ms White understood that Ms Obagbemi claimed that she had hurt Mr H; the allegations sent to her earlier had referred to physical abuse of a resident involving drying hands with force. The findings sent to Ms White said that she had caused Mr H to become distressed and cry. The allegations and findings in relation to the failure to follow care plans were also appropriately put to Ms White, and she admitted to this conduct.69 Section 387(c) is concerned with whether an employee has an opportunity to respond to a reason for dismissal related to conduct or performance. Ms White was afforded this opportunity.

[72] In relation to Ms White’s failure to comply with resident care plans, it was further contended for the applicant that she was not afforded an opportunity to respond to the allegations in relation to JH’s care plan. However, the allegation was a broader one, concerning a general failure to follow care plans, which Ms White admits.

[73] I am satisfied that Ms White was notified of the reasons for her dismissal (and specifically, of each of the two reasons that I have found to be valid reasons), and that she was afforded a reasonable opportunity to respond to these reasons for dismissal.

Was there an unreasonable refusal to allow a support person present (s.387(d))?

[74] There is no suggestion that St Laurence refused (unreasonably or otherwise) to allow Ms White to have a support person present to assist at any discussions relating to dismissal. Indeed her lawyer was present at the meeting with the investigator. I note that there is no positive obligation on an employer to offer an employee the opportunity to have a support person. 70

Was Ms White warned about unsatisfactory performance before the dismissal (s.387(e))?

[75] If a dismissal relates to unsatisfactory performance, s.387 requires the Commission to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. Both parties approached this matter, correctly in my view, as a case relating to conduct. Ms White’s submissions do not advance a contention in relation to this consideration in respect of the incident involving Mr H or the failure to follow care plans. 71

[76] The two valid reasons for dismissal I have found to exist in the present matter relate to conduct. There is not always a clear dividing line between misconduct and poor performance; the failure to follow resident care plans could also be characterised as a failing of, or laxity or negligence in, performance. However, in the circumstances it was not necessary for Ms White to have been warned about her failure to follow resident care plans.

Considerations relating to the size of the enterprise, and dedicated human resources (s.387(f) and (g))

[77] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise, would be likely to impact on the procedures followed in effecting the dismissal (ss.387(f)(g)).

[78] Ms White contends that these are neutral considerations in the present case. St Laurence is a reasonably large organisation employing some 150 employees, and there were dedicated human resources specialists. The respondent concedes that it had dedicated human resources specialists. In my view, these considerations do not carry weight in the analysis of whether the dismissal was unfair.

Any other matters the Commission considers relevant (s.387(h))

[79] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant.

[80] The proportionality of the dismissal to the conduct that is the subject of a valid reason is a matter to be considered in connection with s.387(h).

[81] Ms White contends that her dismissal was disproportionate to the gravity of any misconduct, and that the ‘punishment did not fit the crime’. 72 In this connection, Ms White’s representative contended that the definition of serious misconduct is set out in regulation 1.07, which defines the concept for the purposes of s.12 of the Act, and that Ms White’s conduct does not fall within it.

[82] Firstly, I would note that the regulation is not directly relevant to the analysis of the considerations in s.387. Section 12 states that in the Act, ‘serious misconduct’ is to have the meaning prescribed by the regulations. The expression ‘serious misconduct’ is not used in Part 3-2, which deals with unfair dismissal. Nevertheless, as the Full Bench noted in O'Connell v Wesfarmers Kleenheat Gas Pty Ltd: 73

“[23] It is of course the case that the commission of any of the types of conduct referred to in reg.1.07 … may well ground a finding under s.387(a) that there is a valid reason for dismissal, and would also be given significant weight in considering whether a dismissal for such conduct is harsh, unjust or unreasonable under s.387… But the point is that “serious misconduct” as defined in reg.1.07 (or otherwise) is not the criterion for whether a valid reason exists under s.387(a) or for whether a dismissal is unfair or not. It may well be the case, for example, that conduct that does not fall within reg 1.07 may nonetheless be found to constitute a valid reason for dismissal. Alternatively, the fact that a dismissal is based on conduct that does fall within reg.1.07 does not preclude a finding that the dismissal was harsh, unjust or unreasonable.”

[83] The fact that particular conduct might not fall within the regulation does not mean that it does not amount to serious misconduct. In any event, the regulation's definition of serious misconduct is inclusive, not exclusive. 

[84] Secondly, as was noted by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited, 74an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h),75 and it may also be appropriate to conclude that the misconduct was of such a nature as to have justified summary dismissal. This does not mean that it is necessary to consider that an employee’s conduct meets any particular postulated standard of serious misconduct.76

[85] I do not agree with the applicant’s contention that no element of her conduct could fall within the 'statutory definition' in the regulation. The conduct that I have found occurred in connection with Ms White’s treatment of Mr H meets the description of conduct that ‘causes serious and imminent risk to the health or safety of a person’. The personal security and well-being of a vulnerable resident of an aged-care facility is part of their health and safety; this was placed in serious and imminent risk by Ms White’s actions. Further, the failure to follow resident care plans was wilful and deliberate and inconsistent with the continuation of the contract of employment. Ms White knew she was not following the plans, and that they were very important. Finally, the conduct involving Mr H in particular caused a serious risk to the company’s reputation. An incident of mistreatment of a resident has potentially toxic reputational and commercial consequences for an aged care facility. This matter was reported to the police, the department, and Mr H’s family, and will be known to many people. Regardless of whether the misconduct falls within the regulation, I consider it to have been serious.

[86] Ms White’s treatment of Mr H was of sufficient gravity to constitute serious misconduct. For the purposes of my consideration of s.387, I consider that St Laurence’s summary dismissal of Ms White for this reason was not disproportionate to the conduct in question.

[87] As noted above, I have also found Ms White’s failure to comply with resident care plans to be established, and to constitute a valid reason for dismissal. I also consider that this conduct (which is admitted) was sufficiently serious to warrant summary dismissal, and that this sanction was not disproportionate.

Other factors

[88] I take note of the fact that Ms White was an employee with some ten years of service, and had received only one formal warning in the past. It is also relevant to note that Ms White was entrusted with responsibilities to work with a vulnerable class of people, namely older persons, including those suffering from dementia.

[89] Taking into account all of the circumstances and the considerations in s.387, I consider that the dismissal of Ms White was not harsh, unjust or unreasonable and that accordingly her dismissal was not unfair.

[90] The application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Garry Dircks of Just Relations, for the Applicant

Nick Harrington of counsel, for the Respondent

Hearing details:

2017

Melbourne

9 November

Final written submissions:

24 November 2017, from the Applicant

4 December 2017, from the Respondent

12 December 2017, from the Applicant

 1   Statement of Anne Demetriou, paragraph 4

 2   Ibid, paragraph 5

 3   Exhibit AW4, Statement of Angela White

 4   Statement of Anne Demetriou, paragraph 7

 5   Ibid, paragraph 11

 6   Annexure AW5, Statement of Angela White

 7   Statement of Lily Stefanovic, paragraph 25

 8   Annexure LS-1 to the Statement of Lily Stefanovic

 9   Annexure AW8 to the Statement of Angela White

 10   Annexure LS-3 to the Statement of Lily Stefanovic

 11   Annexure AW9 to the Statement of Angela White, p2, item 5

 12   Ibid, paragraph 6

 13   Statement of Anne Demetriou, paragraph 14

 14   Ibid, paragraph 15

 15   Note paragraph 24 of the Statement of Lily Stefanovic concerning an error and an omission in the termination letter.

 16   Annexure AW10 to the Statement of Angela White

 17   The other requirements of s.385 are all satisfied in the present case: Ms White was dismissed, the dismissal was not consistent with the code, and the dismissal was not a genuine redundancy.

 18   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 19   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681 at 685

 20   Edwards v Giudice (1999) 94 FCR 561, at 564; King v Freshmore (Vic) Pty Ltd , AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000, Print S4213 [24].

 21   Ibid

 22   Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at p 363

 23   Ibid per Dixon J at p 362

 24   Ibid per Rich J at p 350

 25   Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 216 per Dixon J

 26   Statement of Angela White, paragraph 39

 27   Ibid, paragraph 40

 28   Statement of Folasade Obagbemi, paragraph 11

 29   Transcript at PN1448

 30   Statement of Folasade Obagbemi, paragraph 13

 31   Transcript at PN1459

 32   Transcript at PN1487

 33   Evidence of Lily Stefanovic at PN1350, 1351

 34   Transcript at PN566-568

 35   See for example PN175-179, 188

 36   Transcript at PN590-591

 37   Transcript at PN1523

 38   Witness statement of Folasade Obagbemi, paragraph 11; PN1448

 39   Witness statement of Angela White, paragraph 39; PN261, 585, 593-4

 40   Annexure AW9 to the Statement of Angela White, p2, item 5

 41   Ibid, p3

 42   Transcript at PN531

 43   Transcript at PN532, 536

 44   Transcript at PN871

 45   Transcript at PN1269-1273; Exhibit R4 – attachment to LS2 investigation report

 46   Page 19 of LS2 Investigation Report, Exhibit R4

 47   Transcript at PN1451

 48   Transcript at PN1682

 49   Transcript at PN1683

 50   Applicant’s closing submissions, paragraph 80

 51   Page 19 of LS2 Investigation Report, Exhibit R4

 52   Applicant’s reply submissions, paragraph 8

 53   Reply submissions, paragraph 8; PN579, 580]

 54   Exhibit R9

 55   Transcript at PN298-301

 56   Statement of Anne Demetriou, paragraph 17

 57   Transcript at PN664,684-5

 58   Transcript at PN662-4; AW8, p4

 59   Transcript at PN300

 60   Transcript at PN738

 61   Transcript at PN693

 62   Transcript at PN739-740

 63   Sharp v BCS Infrastructure Support Pty Limited, [2015] FWCFB 1033 At 32

 64   Chubb Security Australia Pty Ltd v Thomas, Print S2679 at [41]].

 65   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137at 151; Previsic v Australian Quarantine Inspection Services Print Q3730

 66   FN RMIT v Asher (2010) 194 IR 1 at 14-15

 67   Paragraph 21

 68   Transcript at PN1219-1225

 69   Annexure AW8, p4

 70   Explanatory Memorandum to the Fair Work Bill, [1542]

 71   Applicant’s submissions, paragraphs 25, 26

 72   Applicant’s submissions, paragraph 31

 73   [2015] FWCFB 8205

 74   [2015] FWCFB 1033

 75   At [34]

 76   Ibid

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